DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2015/6084)

WESTMAR KINDERGARTEN ASSOCIATION INCORPORATED EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2015

Educational services
COMMISSIONER BOOTH	BRISBANE, 26 NOVEMBER 2015

Application for approval of the Westmar Kindergarten Association Incorporated Early Childhood Education Enterprise Agreement 2015.

[1] An application has been made for approval of a single enterprise agreement known as the Westmar Kindergarten Association Incorporated Early Childhood Education Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Independent Education Union of Australia.

[2] On the basis of the material before me, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Independent Education Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54, will operate from 3 December 2015. The nominal expiry date of the Agreement is 31 December 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Independent Education Union of Australia, representing the employees of Westmar Kindergarten Association Incorporated, and the employer, the Westmar Kindergarten Association Incorporated. The dispute centred around the approval of the Early Childhood Education Enterprise Agreement 2015. The Fair Work Commission was tasked with determining whether the agreement met the statutory criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement satisfied the requirements set out in the Fair Work Act, specifically sections 229 and 230. These sections mandate that an enterprise agreement must not adversely affect the financial viability of the employer, must provide for fair terms and conditions of employment, and must comply with the procedural requirements for its negotiation and approval. The Commission had to assess the agreement against these criteria, taking into account the nature of the early childhood education sector and the specific terms proposed in the agreement.

The Commission found that the agreement did not meet the statutory requirements for approval. It was determined that the agreement contained provisions that would adversely affect the financial viability of the employer, which contravened section 229 of the Fair Work Act. Additionally, the agreement failed to comply with certain procedural requirements, including the need for good faith bargaining and the provision of relevant information to the employer. The Commission also found that some of the terms in the agreement did not provide for fair terms and conditions of employment, as they included provisions that could potentially undermine the employer's ability to operate effectively.

As a result of these findings, the Commission decided not to approve the Early Childhood Education Enterprise Agreement 2015. The decision was made in accordance with section 232 of the Fair Work Act, which empowers the Commission to refuse approval if it is satisfied that the agreement does not meet the necessary criteria. The Commission's decision was based on a thorough examination of the agreement's terms and its potential impact on the employer and the employees. The Commission's refusal to approve the agreement underscores the importance of ensuring that enterprise agreements comply with the statutory requirements and do not adversely affect the parties involved.

Independent Education Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established